20081022 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 64 OF 2008 (Original Criminal Case No. 192 of 2001 of the District Court of Kondoa District at Kondoa Before: Hon. NkolIa Esq. District Magistrate) MUSSA NZASSA ..... APPELLANT VERSUS THE REPUBLIC ..... RESPONDENT JUDGMENT 17/9/2008 & 22/10/2008 KWARIKO, J: The appellant MUSSA NZASSA was Charged and Convicted with the Offence of Armed Robbery Contrary to Section 285 and 286 of the Penal Code cap. 16 vol. 1 of the 1 Laws. He was sentenced to thirty (30) years imprisonment and twelve (12) Strokes of a cane. He was dissatisfied with the trial Court's decision hence this appeal. The facts of this case go as follows. Past Midnight one day as in November, 2001 the complainant Madome sb Lisho, PWI at the trial was invaded by thugs. He had his hands tied up with ropes, blind-folded with a bed sheet and beaten where the thugs Managed to Steal Seventeen (17) heads of Cattle belonging to him. The thugs had a torch which helped him to identify them. Light from burning firewood also assisted him to Identify the appellant and another one Matonya Mapelea. Later, PWI Mentioned the assailants (appellant and another) before the people who came to assist him after the thugs had left. The co-villagers followed hoof prints of the cattle where at Hamia Village Seven (7) heads of Cattle were found in the company of the appellant and other people. Two of the people were arrested while the appellant and two others managed to run away. That, the Cattle which had cut marks on the ears were later identified by the complainant as his stolen property. The seven heads of cattle were admitted in Court as Exhibit P1 2 collectively. The search party included PW3 Aidas Felix and PW4 Joseph Alois. On his part, the appellant denied the allegations. He testified that he was arrested on 24/9/2001 for the offence of fighting with another man at a local brew shop but he was later Charged with the present offence. It was for the foregoing evidence that the trial court found the Prosecution Case proved beyond reasonable doubt against the appellant. He was convicted and Sentenced accordingly. The appellant filed Several grounds of appeal which are effectively challenging that the Prosecution Case did not prove that he was sufficiently identified as the one who committed the offence. During the hearing of the appeal, Mr Kirumbi Learned State Attorney for the respondent, Republic did not support the conviction and Sentence of the trial Court against the appellant. The reasons advanced by Mr Kirumbi were not different from the ones that the appellant raised in the memorandum of appeal and his submission in Court. 3 This Court also agrees with both parties that the Prosecution Case against the appellant was not proved beyond reasonable doubts. The reasons are the same as advanced by both parties. They are as follows: While the complainant, PWI testified that he identified the appellant and one Matonya Mapelea at the Scene, he did not explain how the torch the thugs were having assisted him to identify them. The law says that identification of thieves by torch light is not effective, [ See MOHA MED MUSERO VR 119931 TLR 2901. Also PWI did not explain what was the strength of the firewood light and where the same was positioned when the thugs invaded him to identify them. Further, PWI was not certain which light assisted him to identify the thugs between the ones he mentioned earlier and moonlight that he mentioned later when he was recalled to tender exhibits. He did no mention where the thugs found him when he was invaded between inside his house and outside and what duration of time it took for him to see and identify the thugs. But then, the complainant testified that the thugs had blind folded him with a bed sheet 11 therefore the possibility that he identified them was negligible or not there at all. PWI also did not explain how he was familiar with the appellant since he stated that they were living in two different villages. Therefore, it is clear that the conditions for proper identification as outlined in the case of WAZIRI AMANI VR 119801 TLR 250 were not met in the instant case. On the other hand, PW3 and PW4 who were searching for the Stolen Cattle testified that when they reached Hamia village they found Seven heads of cattle. They also saw the appellant and four others in the company of the cattle. That, the appellant and two others managed to run away while they arrested the other two. These witnesses did not explain how they identified the appellant and others while they stated that they ran away. They did not state what was the distance between them and the appellant that enabled them to identify him. They did not state where the people they stated they arrested had gone and how the appellant was arrested later and Charged. It is clear that these witnesses could not have identified the people who ran away after they saw them. 5 PW3 and PW4 also did not state how they managed to identify the stolen cattle since the complainant, PWI was not among them. PWI did not state the distinguishing marks of his cattle before the same were tendered in Court as exhibit. He mentioned the marks when the Court had already seen the cattle when he was recalled to tender them as exhibit. This was contrary to the law. He ought to have explained the distinguishing marks of the stolen cattle before the same was brought before the Court to be tendered as exhibit. As Mr Kirumbi rightly submitted, it was doubtful if the alleged Cattle (Exhibit P1) were the rightful property of the complainant. Lastly, the prosecution Case becomes more doubtful since the evidence did not prove the charge. This is so because, while the Charge reads that the incident occurred in an unknown day of November, 2001, the appellant was Charged in Court on 11/10/2001. This means that the appellant was Charged with the offence before the same happened. For this, I agree with the appellant that he was arrested for a different offence, which he mentioned. to be fighting but he was charged later with the present offence. What a Maladministration of justice by the people 31 who are expected to safeguard it. There is no mention of a Police and how they were involved in this Case before the appellant was Charged in Court. Also, while the Charge mentions that the complainant was threatened by arrows and long knife (sime), PWI testified that he was threatened by long knife (sime) only. The doubts I highlighted above show that this incident was only fabricated against the appellant and therefore it has been a sorry situation that he had to endure the Prison Conditions for almost seven years now. I find that the prosecution case was not at all proved to the required standard of Criminal law. Consequent to the above, I hereby allow the appeal, quash the conviction and set aside the sentence of thirty (30) years and Corporal Punishment of twelve Strokes of a Cane against the appellant. The appellant is ordered to be set at liberty unless otherwise held for other lawful cause. It is so held. 7 . 4 -- 7/ (M. A. ARIKO) o'- - JUDGE (f -r 22/10/2008 AT DO 22/10/2008 Appellant: Present For Respondent: Absent C/c: Mr Masinde.